Citation Nr: 0320849
Decision Date: 08/19/03 Archive Date: 08/25/03
DOCKET NO. 96-42 995 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to an increased disability evaluation for
sacroiliac strain with low back traumatic degenerative joint
disease, currently rated as 40 percent disabling.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Nancy Rippel, Counsel
INTRODUCTION
The veteran served on active duty from April 1943 to January
1946.
This matter came before the Board of Veterans' Appeals
(Board) on appeal of a June 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, that increased the veteran's disability rating
for his service-connected back disability from zero to 10
percent. The veteran appealed that decision. The Board
remanded the matter in August 2000. Subsequently, the RO
increased the veteran's disability rating to 40 percent. The
veteran has continued his appeal, urging that his low back
disability is more disabling.
FINDING OF FACT
The veteran's sacroiliac strain with low back traumatic
degenerative joint disease is manifested by sacroiliac and
lumbosacral strain productive of not more than moderate
limitation of range of motion including 70 degrees flexion,
20 degrees lateral bending bilaterally, and extension back to
20 degrees; there is no objective evidence of current nerve
involvement.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 40 percent rating
for sacroiliac strain with low back traumatic degenerative
joint disease are not met. 38 U.S.C.A. §§ 1155, 5102, 5103,
5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.40-
4.45, 4.71, 4.71a, Diagnostic Code 5010, 5293 (2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
A. VCAA
In November 2000, the President of the United States signed
into law the Veterans Claims Assistance Act of 2000 (VCAA),
Pub.L. No. 106-475, 114 Stat. 2096 (2000). This act
introduces several fundamental changes into the VA
adjudication process. See Karnas v. Derwinski, 1 Vet. App.
308, 312-13 (1991). These changes were codified in pertinent
part at 38 U.S.C.A. §§ 5103, 5103A (West 2002) and 38 C.F.R.
§ 3.159 (2002). In effect, this new legislation eliminates
the requirement under the old 38 U.S.C.A. § 5107(a) (West
1991) that a claimant must present a well-grounded claim
before the duty to assist is invoked.
Under the VCAA, VA's duty to notify and assist has been
significantly expanded in the following areas. First, VA has
a duty to provide an appropriate claim form, instructions for
completing it, and notice of information necessary to
complete the claim if it is incomplete. 38 U.S.C.A. § 5102
(West 2002); 38 C.F.R. § 3.159(b)(2) (2002). Second, VA has
a duty to notify the veteran of any information and evidence
needed to substantiate and complete a claim, and of what part
of that evidence is to be provided by the claimant and what
part VA will attempt to obtain for the claimant. 38 U.S.C.A.
§ 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2002); See
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Third,
VA has a duty to assist claimants in obtaining evidence
needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a),
5103A (West 2002); 38 C.F.R. § 3.159(c) (2002).
Initially, the Board finds no deficiencies with the duty to
provide an appropriate claim form, instructions for
completing it, and notice of information necessary to
complete the claim if it is incomplete as required in
38 U.S.C.A. § 5102. The veteran's claim for an increased
rating was received in June 1995. With respect to VA's duty
to notify, the record shows that the requirements of the VCAA
were set forth in the Board's August 2000 remand as well as
in a letter furnished to the appellant and his representative
in March 2003. He was also provided Supplemental Statements
of the Case (SSOC's) in July 2002, January 2003 and April
2003. A letter dated in December 2000 from the RO asked the
veteran about for specific additional medical records
relevant to his claim and informed him that the VA sought
records from one of his treating sources, Dr. Golden. These
records were received. It appears from the contentions and
arguments presented by the appellant that he is fully aware
of the relevant law and evidence germane to his claims at
issue on appeal, and is aware, as well, of the
responsibilities that both he and VA share with respect to
the development of the claims. The VCAA-notice letter of
March 2003, as well as the SSOCs, informed him what evidence
and information VA had and what VA would be obtaining
relative to his claim for an increased rating, and explained
that VA would make reasonable efforts to help him get
evidence such as medical records, but that he was responsible
for providing sufficient information to VA to identify the
custodian of any records. The March 2003 letter further
informed the veteran of the provisions of the VCAA and VA's
duties. The Board notes that the RO informed the veteran in
the changes in the relevant regulation regarding
intervertebral disc syndrome in the April 2003 SSOC. In the
April 2003 SSOC, a response within 60 days was requested.
The veteran responded in writing that he wished to waive the
60 days.
In view of the above, and from review of the evidence in the
claims file, there does not appear to be any additional
missing information or other evidence that has not been
accounted for in the RO's notification actions taken in
connection with the appellate development and review of this
appeal. Therefore, the Board finds that the Department's
duty to notify has been satisfied. See Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16
Vet. App. 370 (2002).
With respect to VA's duty to assist, the appellant has
provided records of private treatment but has not referenced
any additional unobtained evidence that might aid his appeal
or that might be pertinent to his claim. The RO sought these
records but was unable to locate them. The veteran was
informed of this fact. The duty to assist also includes,
when appropriate, the duty to conduct a medical examination
of the claimant. In this case, the RO provided the appellant
VA compensation examinations in October 1996, October 1997,
November 2000, and April 2003 in connection with the
development and adjudication of the claim on appeal.
Finally, the Board notes that the VCAA notification letters
sent to the appellant, in conjunction with the statements of
the case and the supplemental statements of the case,
essentially complied with the recent holding of Disabled
American Veterans, et. al. v. Secretary of Department of
Veterans Affairs, Nos. 02-7304, -7305, -7316 (Fed. Cir., May
1, 2003). That case held that 38 C.F.R. § 19.9(a)(2)(ii) is
invalid to the extent it provides a claimant "not less than
30 days" to respond to a VCAA notification letter sent by
the Board because it is contrary to 38 U.S.C.A. § 5103(b),
which provides a claimant one year to submit evidence. In
this case, the RO and not the Board advised the appellant of
the VCAA. The RO's duty to notify, pursuant to 38 C.F.R. §
3.159(b), was not invalidated by the recent Federal Circuit
decision. Moreover, even if the 2003 VCAA letter did not
expressly notify the appellant that he had one year to submit
the requested information and/or evidence, in compliance with
38 U.S.C.A. § 5103(b), any such error in the letters was
harmless and did not affect his substantive rights. That is
so because more than one year has passed since the July 2002
SSOC, the BVA remand and the December 2000 letter were sent,
so the appellant's case was not decided before the one-year
period expired, and he had more than ample time to submit
additional evidence. The documents collectively provided
pertinent law and addressed all evidence presented in the
claim. It is clear that the claimant has nothing further to
submit, and adjudication of his claim can proceed. He has
indicated as recently as April 2003, in his letter following
the last SSOC, that he wanted his case forwarded to the Board
without delay.
In light of the circumstances of this case, which has
involved extensive development attempts, including multiple
attempts to schedule the veteran for examinations, obtaining
all medical records known to exist, and obtaining VA medical
examinations concerning the claim, it appears that VA has
done everything reasonably possible to assist the appellant.
Further delay of the appellate review of this case by the
Board would serve no useful purpose.
Accordingly, the Board finds that additional efforts to
assist within the letter and spirit of the VCAA are not
required. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991)
(strict adherence to requirements of law does not dictate an
unquestioning, blind adherence in the face of overwhelming
evidence in support of the result in a particular case; such
adherence would result in unnecessarily imposing additional
burdens on VA with no benefit flowing to the veteran).
B. Increased rating
1. Factual Background
A February 1946 rating decision granted service connection
for sacroiliac strain. A non-compensable rating was
assigned. In June 1995, the veteran filed a claim for an
increased rating. A 40 percent rating was granted during the
course of the current appeal.
VA examinations were conducted in October 1996 and October
1997. In 1996, range of motion of the low back was 1/3
normal. Knee and ankle jerks were 2+ and symmetrical. In
1997, there was no muscle spasm on palpation of the back and
no tenderness in the sacroiliac joints. Flexion was to 80
degrees, extension was to 20 degrees, and lateral flexion was
to 20 degrees bilaterally. Deep tendon reflexes were again
2+ in the knees and ankles. There was no loss of sensation
or atrophy of the musculature.
Relevant VA treatment records dated from 1995 to 2000 show a
history of complaints of back pain as well as a history of X-
ray findings consistent with degenerative changes involving
the thoracic and lumbar spine.
Private treatment records from M. K. Golden, M.D., dated from
January 1995 to February 2000 show one visit for back pain in
February 2000. The veteran was treating with Motrin and
wanted to discuss treating with another medication.
The veteran was afforded a VA examination in November 2000.
He reported that since service he worked as a tool rebuilder.
He worked 44 years for a tool company before retiring in 1986
due to unrelated health problems. The veteran reported he
had back pain daily. He could walk a mile but stand for only
about five or 10 minutes. His back bothered him on steps or
when he turns the wrong way. He reported he attended a VA
clinic for his back.
On examination, the veteran stood with a trunk tilt and had a
lumbar curvature with a prominence on the right side of the
spine. Straight leg raising was to 60 degrees bilaterally.
Back motion was restricted. Flexion was to 50 degrees, 5
degrees extension and 10 degrees side tilt bilaterally. It
was noted that he accomplished much of his forward bending
with his hips. Old X-rays were noted to show scoliosis, old
compression fracture of dorsal 12, narrowing of L5 disc
space, degenerative osteophytes throughout the lumbar spine.
The diagnosis was sacroiliac sprain. The examiner felt that
the sacroiliac problem and the low back problem were
basically the same, and they came from the same injury. As
to the functional impairment caused by the disability, the
examiner believed the disability related to service probably
involved the disc as well as the joint structure. The
examiner did not observe lack of coordination. Excess
fatigability and weakened movement were considered to be age-
related. Not much pain was noted. The examiner felt the
inability to stand for prolonged periods was related to the
back disability. There was no muscle atrophy. Knee and
ankle jerks were symmetrical and active. The veteran could
heel and toe walk with some mild difficulty.
X-rays taken with the November 2000 examination showed
curvature and alignment within normal limits. There was
slight loss of height anteriorly T12-L2. Narrowing of the
L5/S1 disc space was noted, to a lesser extent consistent
with degenerative joint disease.
More recently, the veteran was afforded a VA examination in
April 2003. He reported right flank pain of a 5 out of 10 in
severity which progresses to a 10 with activity. Pain is
increased with bending, heavy activity, standing for over 10
minutes, or lifting over 15 pounds. It was noted that past
X-rays of the hips showed moderate degenerative arthritis,
and those of the spine showed lumbosacral disc disease.
Examination showed sensation to be normal. Deep tendon
reflexes were 3/4 at the knees and 1/4 at the ankles.
Straight leg raising was negative. Flexion was to 70
degrees, extension was to 20 degrees. Lateral movement was
to 20 degrees. There was tenderness to the right sacroiliac
joint. The diagnosis was sacroiliac strain, right, chronic,
moderate disability, slight progression, degenerative
arthritis, both hips, no significant disability, chronic
lumbosacral strain, no significant disability. The examiner
found that the sacroiliac joint and the lumbar paraspinous
muscle were the areas that involved disability. There was no
apparent nerve involvement. The veteran showed minimal
weakness of the low back, excess fatigability, but no
incoordination. No visible pain was noted with walking.
There was no atrophy but there was lumbar muscle hypertrophy.
There was no apparent clinical difference with in the veteran
over the past year, according to the examiner.
2. Analysis
Disability ratings are determined by applying the criteria
set forth in the VA's Schedule for Rating Disabilities, which
is based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.
There are additional laws and regulations that the VA must
consider when evaluating a claim for an increased disability
rating. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria for that rating. Otherwise, the lower rating
will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt
regarding a degree of disability will be resolved in favor of
the veteran. See 38 C.F.R. § 4.3. When the evidence is in
relative equipoise, the veteran is accorded the benefit of
the doubt. Gilbert v. Derwinski, 1 Vet. App. 49, 55-57
(1990). Where an increased rating is at issue, the present
level of the disability is the primary concern. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
In evaluating a service-connected joint disability, VA must
also consider functional loss due to pain under 38 C.F.R. §
4.40 and functional loss due to weakness, fatigability,
incoordination or pain on movement of a joint under 38 C.F.R.
§ 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). Diagnostic
codes pertaining to range of motion do not subsume 38 C.F.R.
§ 4.40 and § 4.45, and the rule against pyramiding in 38
C.F.R. § 4.14 does not forbid consideration of a higher
rating based on a greater limitation of motion due to pain on
use, including use during flare-ups.
The veteran's service-connected sacroiliac strain with low
back traumatic degenerative joint disease has been evaluated
under Diagnostic Codes (DC) 5010 pertaining to traumatic
arthritis and DC 5293, pertaining to degenerative disc
disease. Up until September 23, 2002, DC 5293 provided that
pronounced intervertebral disc syndrome, with persistent
symptoms compatible with sciatic neuropathy with
characteristic pain and demonstrable muscle spasm, absent
ankle jerk, or other neurological findings appropriate to the
site of the diseased disc, with little intermittent relief,
warrants a 60 percent evaluation. Severe intervertebral disc
syndrome with recurring attacks with intermittent relief,
warrants a 40 percent rating. Moderate intervertebral disc
syndrome, with recurring attacks, warrants a 20 percent
rating. Mild intervertebral disc syndrome is rated at 10
percent. See 38 C.F.R. § 4.71a, Diagnostic Code 5293.
Changes to this Diagnostic Code became effective September
23, 2002. They are as follows:
Evaluate intervertebral disc syndrome
(preoperatively or postoperatively) either on the
total duration of incapacitating episodes over the
past 12 months or by combining under Sec. 4.25
separate evaluations of its chronic orthopedic and
neurologic manifestations along with evaluations
for all other disabilities, whichever method
results in the higher evaluation.
With incapacitating episodes having a total
duration of at least six weeks during the past 12
months, rate at 60 percent;
With incapacitating episodes having a total
duration of at least four weeks but less than six
weeks during the past 12 months, rate at 40
percent;
With incapacitating episodes having a total
duration of at least two weeks but less than four
weeks during the past 12 months, rate at 20
percent;
With incapacitating episodes having a total
duration of at least one week but less than two
weeks during the past 12 months, rate at 10
percent.
Note (1): For purposes of evaluations under 5293,
an incapacitating episode is a period of acute
signs and symptoms due to intervertebral disc
syndrome that requires bed rest prescribed by a
physician and treatment by a physician. "Chronic
orthopedic and neurologic manifestations" means
orthopedic and neurologic signs and symptoms
resulting from intervertebral disc syndrome that
are present constantly, or nearly so.
Note (2): When evaluating on the basis of chronic
manifestations, evaluate orthopedic disabilities
using evaluation criteria for the most appropriate
orthopedic diagnostic code or codes. Evaluate
neurologic disabilities separately using evaluation
criteria for the most appropriate neurologic
diagnostic code or codes.
Note (3): If intervertebral disc syndrome is
present in more than one spinal segment, provided
that the effects in each spinal segment are clearly
distinct, evaluate each segment on the basis of
chronic orthopedic and neurologic manifestations or
incapacitating episodes, whichever method results
in a higher evaluation for that segment.
See Amendment to Part 4, Schedule for Rating Disabilities,
Effective September 23, 2002; See 67 Fed. Reg. 54345-54349
(August 22, 2002).
Where the law or regulations governing a claim change while
the claim is pending, the version most favorable to the
claimant applies, absent congressional intent to the
contrary. See Karnas v Derwinski, 1 Vet. App. 308, 312-313
(1991). Accordingly, when such disability is service
connected, the Board is generally required to review both the
pre- and post-September 23, 2002, rating criteria to
determine the proper evaluation for the veteran's disability
due to intervertebral disc disease. The effective date rule
established by 38 U.S.C.A. § 5110(g), however, prohibits the
application of any liberalizing rule to a claim prior to the
effective date of such law or regulation. Id.
Applying the former criteria, the veteran's low back
disability has been most recently characterized by the VA
examiner in April 2003 as sacroiliac strain with low back
arthritis. There is no objective evidence of radiculopathy
or other nerve involvement. This is consistent with the
prior examinations and findings in the time period since the
claim was filed in June 1995. The ranges of motion indicated
in that 2003 examination are not full but rather somewhat
restricted. X-rays showed degenerative changes. As to the
relevant criteria for an increased rating under DC 5293, the
record reflects that muscle spasm is not present. Nor are
other neurological findings appropriate to the site of a
diseased disc. Lateral spine motion, unilateral, in standing
position, was limited but not noted to be lost on any
examination. Ankle jerk is present. Although there have
been problems with the right sided sacroiliac pain, this is
not related to neurological disease, as noted by the examiner
in April 2003.
The record shows that the veteran does not demonstrate
intervertebral disc syndrome to the extent that he was having
incapacitation episodes at least six weeks during the past 12
months rate. The most recent examiner noted no neurological
involvement, and VA and private treatment records do not
substantiate the occurrence of any incapacitating episodes.
The remaining medical evidence fails to objectively
demonstrate nerve involvement which would warrant an
increased rating under the new criteria. As there is a lack
of objective evidence of radiculopathy or nerve involvement,
an increased rating under the new criteria for 5293 is thus
inappropriate.
Similarly, the Board notes that the subsequent evidence fails
to support a finding that the veteran's service-connected low
back disability rating should be increased based solely upon
traumatic arthritis. Traumatic arthritis established by X-
ray findings is to be evaluated as degenerative arthritis. 38
C.F.R. § 4.71a, Diagnostic Code 5010 (2002). Degenerative
arthritis established by X-ray findings will be evaluated on
the basis of limitation of motion of the specific joint or
joints involved. Limitation of motion must be confirmed by
findings such as swelling, muscle spasm, or satisfactory
evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic
Code 5003 (2002).
As pointed out by the examiner the most recent VA
examination, the degenerative arthritis of the hips and
chronic lumbosacral strain caused no significant disability.
An increased rating is not for application under DC 5010.
The sacroiliac strain caused no more than moderate
disability. Range of motion of the lumbar spine is rated at
40 percent when severe. See 38 C.F.R. § 4.71a, Diagnostic
Code 5292. The veteran's current rating is 40 percent. See
38 C.F.R. § 4.14.
The 2003 VA examination report was thorough and based on a
review of the entire claims file as well as an examination of
the veteran. The findings are uncontroverted and in fact the
clarify discordant findings suggesting possible disc disease,
e.g. complaints of pain and symptoms in earlier records.
Thus, the Board finds the 2003 report and opinion persuasive
and probative as to the lack of a basis for an increased
rating under Diagnostic Code 5293, former and revised, 5010,
and any other related Diagnostic Code.
The potential application of various provisions of Title 38
of the Code of Federal Regulations (2002) have been
considered whether or not they were raised by the veteran as
required by the Court's holding in Schafrath v. Derwinski,
1 Vet. App. 589, 593 (1991). Considering functional loss due
to pain under 38 C.F.R. § 4.40 and functional loss due to
weakness, fatigability, incoordination or pain on movement of
a joint under 38 C.F.R. § 4.45, as set forth in DeLuca v.
Brown, 8 Vet. App. 202 (1995), the Board notes that there is
minimal weakened movement and excess fatigability. Both have
been attributed to the veteran's age. Furthermore, VA
examinations specifically indicate no incoordination. Thus,
no additional rating is warranted pursuant to DeLuca.
ORDER
An evaluation in excess of 40 percent for sacroiliac strain
with low back traumatic degenerative joint disease is denied.
____________________________________________
P. M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.